AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 10 June 2016

Turnbull v R

[2016] NSWCCA 109

Homicide
CRIMINAL LAW APPEAL S 5F CRIMINAL APPEAL ACT MURDER PRE LACKED REQUISITE DEGREE OF FINALITY

Citation: Turnbull v R [2016] NSWCCA 109
Court: Court of Criminal Appeal
Date: 10 June 2016
Judge(s): R A Hulme J (with reasons); Garling J and Wilson J (agreeing)

Background

The applicant faced trial on two counts: the murder of a compliance officer employed by the Office of Environment and Heritage, and the detention of a second officer. The Crown alleged the applicant, a farmer who had been prosecuted for illegal land clearing, harboured animosity toward the deceased and shot him while the deceased was performing his duties in July 2014.

Before the jury was empanelled, the applicant gave notice of two partial defences to murder: substantial impairment by abnormality of mind, and extreme provocation under s 23 of the Crimes Act 1900 (NSW). The extreme provocation defence was particularly significant because s 23 had only come into force on 13 June 2014, making this the first case in which the provision had been considered.

At a pre-trial hearing, Johnson J ruled on the proper construction of s 23 and concluded, on the material then available, that the partial defence of extreme provocation was not available on the evidence disclosed. The applicant sought leave to appeal that ruling to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), which permits appeals against interlocutory judgments or orders.

  • Whether Johnson J's pre-trial ruling on the availability of the extreme provocation defence constituted an "interlocutory judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act 1912 (NSW).
  • Whether the proposed appeal was therefore competent.
  • Specifically, whether the ruling possessed sufficient finality to qualify as an interlocutory judgment or order susceptible to appeal under that provision.

Decision

The Court refused leave and held that the proposed appeal was incompetent. The central reason was that Johnson J's ruling lacked the degree of finality required for it to constitute an "interlocutory judgment or order" under s 5F(3).

Hulme J examined the terms of Johnson J's ruling carefully. His Honour had acknowledged, in multiple passages, that he was adjudicating on the basis of incomplete material. The ruling was explicitly made on the evidence and factual matters available to him at the pre-trial stage, and the applicant had chosen not to place all potentially relevant material before the court at that hearing. The words Johnson J used, including references to the "material before the Court at this pretrial hearing," confirmed that his determination was provisional rather than definitive.

The Court drew support from the decision in A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244. Senior counsel for the applicant conceded that, if a court at the same or higher level subsequently construed s 13 of the Crimes (Domestic and Personal Violence) Act 2007 differently, it would be open to Johnson J to revisit the ruling in the interests of justice. The Court regarded this concession as further confirmation that the ruling lacked the finality necessary to qualify as an interlocutory judgment or order.

Johnson J's observations on two additional elements of the defence under s 23(2)(a) and (d) were even less capable of constituting an interlocutory judgment or order. Because his Honour had found no evidence satisfying s 23(2)(b), it was unnecessary to formally rule on the remaining elements. His observations on those elements were characterised as "views" only, expressed on an incomplete evidentiary basis. They could not be regarded as definitive determinations that finally disposed of any aspect of the proceedings.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A pre-trial ruling on the availability of a partial defence does not automatically constitute an "interlocutory judgment or order" under s 5F(3) of the Criminal Appeal Act 1912 (NSW); the ruling must possess a requisite degree of finality.
  • Where a trial judge expressly acknowledges that a pre-trial determination is made on incomplete material and remains open to revision in light of further evidence or contrary authority, that ruling lacks sufficient finality to be susceptible to interlocutory appeal.
  • Obiter observations on legal questions that a judge finds it unnecessary to formally resolve do not constitute interlocutory judgments or orders capable of being appealed under s 5F(3).
  • In refusing the application, the Court of Criminal Appeal confirmed that the partial defence of extreme provocation under s 23 of the Crimes Act 1900 (NSW), as amended in June 2014, remained live for consideration at trial, notwithstanding the pre-trial ruling.
  • The capacity of an accused or another party to invite the trial judge to revisit a pre-trial ruling in light of changed circumstances or new authority was treated as a significant indicator that the ruling lacked finality for the purposes of the interlocutory appeal jurisdiction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), Pt 11A, ss 23, 23A, 45, 61HA
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 139, 143
- Native Vegetation Act 2003 (NSW)

Cases
- A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
- R v Adamson [2005] NSWCCA 7
- R v Piper [2005] NSWCCA 134
- R v Turnbull (No 5) [2016] NSWSC 439
- W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275